Opinion
No. COA15–678.
01-19-2016
In the Matter of A.P.H., Jr.
Merri Burwell Oxley for petitioner-appellee Rutherford County Department of Social Services. Sydney Batch for respondent-appellant Mother. Mary McCullers Reece for respondent-appellant Father. Cranfill Sumner & Hartzog LLP, by Laura E. Dean, for guardian ad litem.
Merri Burwell Oxley for petitioner-appellee Rutherford County Department of Social Services.
Sydney Batch for respondent-appellant Mother.
Mary McCullers Reece for respondent-appellant Father.
Cranfill Sumner & Hartzog LLP, by Laura E. Dean, for guardian ad litem.
Opinion
Appeal by respondents from order entered 31 March 2015 by Judge C. Randy Pool in Rutherford County District Court. Heard in the Court of Appeals 28 December 2015.
ZACHARY, Judge.
Respondents, the mother and father of the juvenile A.P.H., Jr., appeal from an order adjudicating the juvenile neglected and dependent and ceasing visitation and reunification efforts. After careful review, we affirm.
I. Factual and Procedural Background
On 28 June 2013, respondents' four month old daughter, D.H., was admitted to Mission Children's Hospital with unexplained injuries, including multiple broken bones, which were determined to be consistent with intentional, non-accidental injuries. D.H. was subsequently adjudicated an abused, neglected and dependent juvenile, and D.H.'s sibling C.H. was adjudicated neglected and dependent. Respondents' parental rights to D.H. and C.H. were terminated on 28 April 2014.
On 20 January 2015, the Rutherford County Department of Social Services (“DSS”) received a report regarding the juvenile's birth. Upon learning of the birth of A.P.H., Jr., DSS went to respondents' home to investigate. Respondents, however, would not disclose the location of the infant juvenile and asked DSS to leave the residence. Accordingly, on 21 January 2015, DSS filed an interference petition. Respondents then turned the juvenile over to law enforcement officers. The infant A.P.H., Jr. was found to be in good health with no injuries. DSS immediately filed a petition alleging neglect and dependency. In addition to the facts regarding D.H.'s abuse and neglect, DSS alleged that respondents “continued to engage in destructive behaviors such as domestic violence and injuries to their child. Any child in their care would be placed in significant danger.” DSS obtained non-secure custody of A.P.H., Jr.
On 31 March 2015, the trial court adjudicated A.P.H., Jr. neglected and dependent. The adjudication of neglect was based on the juvenile living in an injurious environment where another child had been neglected or abused by an adult who regularly lived in the home. The court determined that all services that could be offered to respondents had been tendered to them in the past, respondents' circumstances had not changed, and there were no other services that DSS could extend to the respondents that would make it safe for A.P.H., Jr. to return to respondents' home. The trial court thus concluded that reunification efforts were futile and relieved DSS of further reunification efforts. The trial court further ordered that visitation between respondents and A.P.H., Jr. should cease.
Respondents appeal.
II. Cessation of Reunification Efforts
Respondents first argue that the trial court erred by ceasing reunification efforts. We disagree.
In a dispositional order, a trial court may order DSS to cease reunification efforts where: (1) further efforts “would be futile or would be inconsistent with the juvenile's health, safety, and need for a safe, permanent home within a reasonable period of time[;]” or (2) a “court of competent jurisdiction has terminated involuntarily the parental rights of the parent to another child of the parent[.]” N.C. Gen.Stat. § 7B–507(b)(1) and (3) (2013). “This Court reviews an order that ceases reunification efforts to determine whether the trial court made appropriate findings, whether the findings are based upon credible evidence, whether the findings of fact support the trial court's conclusions, and whether the trial court abused its discretion with respect to disposition.” In re C.M., 183 N.C.App. 207, 213, 644 S.E.2d 588, 594 (2007).
Here, the trial court found as fact:
23. That on March 15, 2012, [C.H.] was adjudicated a dependent juvenile and the respondent parents were to work a case plan with DSS....
...
25. That during the spring, summer and fall of 2012, the respondent parents worked a case plan with DSS that included parenting classes and domestic violence classes.
...
27. That [D.H.] was born on February 5, 2013.
28. That on March 25, 2013, at [a] permanency planning hearing, custody of [C.H.] was returned to the respondent parents and DSS closed its case.
29. That on June 28, 2013, [D.H.], who was four (4) months old at the time, was taken to the pediatricia[n] and then to Dr. Brown at Mission Children's Hospital by the respondent parents. [D.H.] was admitted to the hospital. [D.H.] was found to have a subconjunctival hemorrhage in her right eye, a bruise on the right side of her abdomen; and suffered five (5) broken bones, both clavicles broken (one broken twice), two (2) broken ribs and a broken scapula.... [B]ased on the stages of healing [the injuries] would have occurred at least two (2) to four (4) weeks old prior to June 28, 2013, and would have occurred on two separate occasions. The injuries to [D.H.] were consistent with intentional infliction of injuries and not the result of accidental injury.
...
31.... [D.H.] was found to be an abused, neglected and dependent juvenile and [C.H.] was found to be a neglected and dependent juvenile....
...
33.... [T]he parental rights of the respondent parents as to [C.H.] and [D.H.] were terminated pursuant to an Order of the Court issued on April 28, 2014.
...
39. That [D.H.'s] injuries were not caused by accidental means; however the respondent parent[s'] explanation was that [D.H.] had fallen off a bed but there is nothing to corroborate this explanation.
40. The respondent mother testified that nothing happened to [D.H.] and that the injuries were a conspiracy on the part of DSS, Dr. Brown and the other healthcare providers. The respondent father agreed with the respondent mother's assessment.
41. That the Court finds that the respondent parents are not credible.
42. That the Respondent Father has a criminal history for Assault by Strangulation on a prior girlfriend along [with] Assault with a Deadly Weapon Inflicting Serious Injury, Breaking and Entering and Violation of a Domestic Violence Protective Order.
43. That the respondent father denied the criminal convictions and stated that the only mistake he made was pleading guilty to the criminal charges.
44. That there has been no change of circumstances as to the respondent parents since the first case involving ... [C.H] and the injuries to [D.H.] that would make a child safe in their home. The respondent parents never acknowledged there was a problem and continue to deny there was a problem in their home.
...
46. That if [A.P.H., Jr.] were returned to the respondent parents there is a substantial likelihood of injury and neglect to the minor child.
Additionally, in the dispositional portion of its order, the trial court found:
4. That all services have been offered to the respondent parents in the past, the circumstances of the respondent parents have not changed and there are no other services to offer the respondent parents that would change their circumstances that it would make it safe for [A.P.H., Jr.] to return to the respondent parent[s'] home.
5. That respondent parents have no other explanation for the injuries to [D.H.] other than she fell off the bed.
With the exception of Finding of Fact number 44 of the adjudicatory portion of the order and number 4 of the dispositional portion of the order, mother does not challenge the trial court's findings of fact, and father disputes none of the trial court's findings. Consequently, with the exception of Findings of Fact 4 and 44 as to mother, we are bound by the trial court's findings. See Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (unchallenged findings are deemed supported by competent evidence and are binding on appeal).
Regarding Findings of Fact number 4 and number 44, mother contends that they are contradictory, claiming that Finding number 44 implied that there are certain actions that the parents could take in order to change their circumstances and make their home safer for A.P.H., Jr. Mother further argues that there was no competent evidence that all possible services that could be offered to the respondents have been exhausted. We are not persuaded. Adam Myslinski, a DSS social worker, testified that he was unaware of any services that could be provided to ensure the infant juvenile's safe return to respondents' home. Moreover, the trial court's findings of fact, when read as a whole, demonstrate that D.H. had been injured while in respondents' care due to non-accidental means; no reasonable explanation was given by respondents for D.H.'s injuries; respondents believe there is no problem in their home; and respondents claim that D.H.'s injuries were a fabrication and the result of a conspiracy by health care providers and DSS. Consequently, the trial court concluded that despite the prior provision of services to the respondents, circumstances had failed to change and A.P.H., Jr. was at risk of injury and neglect should he be returned to respondents' care. On this record, we hold that the trial court did not err by concluding that efforts to reunify A.P.H., Jr. with respondents were futile and inconsistent with the child's safety, health, and welfare and need for permanency.
We further note respondents' arguments that the trial court prematurely ceased reunification efforts. Respondents assert that reunification of families is a primary goal of the Juvenile Code, and that the trial court's failure to provide them with a plan of reunification or any services was an abuse of discretion. We note, however, that the Juvenile Code specifically permits the cessation of reunification efforts in disposition orders, and there is no requirement that services be offered prior to cessation of reunification efforts. N.C. Gen.Stat. § 7B–507(b). The trial court determined that it would be in the infant juvenile's best interest to cease reunification efforts, and as stated previously herein, the trial court made the findings required by N.C. Gen.Stat. § 7B–507. Accordingly, we hold the trial court did not err by ceasing reunification efforts in the initial dispositional order.
III. Cessation of Visitation
Respondents further maintain that the trial court erred by ceasing respondents' visitation with A.P.H., Jr. Respondents contend that it is uncontradicted that A.P.H., Jr. was in good health when DSS assumed custody, and that the trial court failed to make specific findings to support its conclusion that visitation should cease. We disagree.
The Juvenile Code provides that “[a]n order that removes custody of a juvenile from a parent, guardian, or custodian or that continues the juvenile's placement outside the home shall provide for appropriate visitation as may be in the best interests of the juvenile consistent with the juvenile's health and safety.” N.C. Gen.Stat. § 7B–905.1(a) (2013). Thus, the court may prohibit visitation by a parent when it is in the juvenile's best interests and consistent with the juvenile's health and safety to do so. See In re J.S., 182 N.C.App. 79, 86–87, 641 S.E.2d 395, 399 (2007). “This Court reviews the trial court's dispositional orders of visitation for an abuse of discretion.” C.M., 183 N.C.App. at 215, 644 S.E.2d at 595.
Here, the trial court found that respondents were unfit parents and A.P.H., Jr. was doing well in his foster placement, and thus concluded that it was not in the best interest of A.P.H., Jr. to allow visitation with the respondents. In light of the historical facts of the case, respondents' failure to accept responsibility for D.H's injuries, and the trial court's conclusion that reunification efforts should cease, we hold that the trial court's decision to cease respondents' visitation with A.P.H., Jr. was not manifestly unsupported by reason. Accordingly, we hold that the court did not abuse its discretion in finding it to be in the best interest of the infant juvenile to cease respondents' visitation.
AFFIRMED.
Judges McCULLOUGH and INMAN concur.
Report per Rule 30(e).